Gain v. Commissioner of Social Security

Filing 28

ORDER granting 27 Motion for relief from order dated April 26, 2021. Signed by Magistrate Judge Amanda Arnold Sansone on 6/1/2021. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KENT W. GAIN, SR.,
Plaintiff,
v.

Case No.: 8:18-cv-01389-AAS

ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
_____________________________________/
ORDER
Kent Gain moves for relief from an order awarding attorney’s fees under
the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. 27). This
request is unopposed. (Id. at p. 3).
The Commissioner moved to remand this action, which the court
granted. (Docs. 20, 21). The court then granted Mr. Gain’s petition for
attorney’s fees under the EAJA on April 12, 2019. (Doc. 24). Following remand
and the denial of Mr. Gain’s claim for Social Security disability benefits, Mr.
Gain filed a second appeal in Gain v. Comm’r, Case No. 8:20-cv-00680-KKMJSS. The Commissioner again moved for remand, which was granted. See Case
No. 8:20-cv-00680-KKM-JSS (Dosc. 21, 23, 24, 25).
After obtaining the agreement of the Commissioner to the award of
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attorney fees under the EAJA in Case No. 8:20-cv-00680-KKM-JSS, Mr. Gain
inadvertently filed the Petition for Attorney fees in the 2018 case number,
instead of in the correct case filed in 2020, Case No. 8:20-cv-00680-KKM-JSS
(Doc. 26). 1
Under Fed. R. Civ. P. 60(b)(1), this court can vacate an order for
“mistake, inadvertence, surprise or excusable neglect.” Thus, the court may
vacate the order awarding attorney’s fees dated April 26, 2021 (Doc. 26),
because the motion was mistakenly filed in the incorrect case.
Mr. Gain’s consent motion for relief from the order entered on April 26,
2021, awarding attorney’s fees under the EAJA (Doc. 27) is GRANTED. The
order dated April 26, 2021 that granted Mr. Gain’s Consent Motion for
Attorney’s Fees and awarded attorney fees of $6,547.46 is VACATED.
ORDERED in Tampa, Florida on June 1, 2021.

Mr. Gain filed two Social Security appeals: (1) a case filed under this docket number
on June 18, 2018 (Doc. 1); and (2) a case filed on March 24, 2020, in Case No. 8:20-cv00680-KKM-JSS. Both cases are titled Kent W. Gain, Sr., v. Comm’r of Soc. Sec.
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